Periodic updates on developments in disability law and related fields.

Thursday, July 18, 2013

New Senate HELP Committee Report on Olmstead Implementation

I'm going to go dark again later today, but I'll break radio silence for a few posts.

Just out: This important report on Olmstead implementation, issued by the Senate HELP Committee. The executive summary:

 The Supreme Court’s 1999 decision in Olmstead v. L.C. put states on notice that unnecessary segregation of individuals with disabilities is a violation of the Americans with Disabilities Act (ADA) of 1990. The ruling was hailed as the disability civil rights equivalent to Brown v. Board of Education, which ordered the desegregation of the nation’s public schools.

 The Olmstead decision clearly articulates that ensuring individuals with disabilities are able to exercise their right to participate as citizens of the state and the country is a protected civil right under the ADA. Olmstead envisioned that states will provide appropriate long-term services and supports (LTSS) to individuals with disabilities through home and community-based services (HCBS) and end forced segregation in institutions.

 Previous testimony before the Committee illustrates the discriminatory nature of institutionalization. One individual stated simply: “People need to have high expectations for people with disabilities because then they’ll give them opportunities to learn and grow. People don’t grow in…institutions.”

 Nationally, there has been a fundamental rebalancing of spending on individuals with disabilities in institutions as compared to spending on HCBS in the years since the Olmstead decision. Between 1995 and 2010, states reduced the share of Medicaid spending on institutions, including nursing homes, mental hospitals, and institutions for people with intellectual and developmental disabilities, from 79 percent to 50 percent.

 However, these numbers fail to paint a complete picture. In reality, only 12 states spent more than 50 percent of Medicaid LTSS dollars on HCBS by 2010. Further, the population of individuals with disabilities under 65 in nursing homes actually increased between 2008 and 2012. This is true even though 38 studies over the past seven years have clearly demonstrated that providing HCBS is more cost-effective than providing services in an institution.

 Last year, on the 13th anniversary of the Olmstead decision, Chairman Harkin requested information from all 50 states on the progress being made to ensure that all individuals with disabilities have the opportunity to live independently in the community through the use of HCBS.

 The result of the survey demonstrates that, with a few exceptions, state leaders continue to approach decisions regarding Medicaid from a social welfare and budgetary perspective. For the promise of Olmstead to be fully realized, state leaders must also approach decisions about Medicaid delivery options from a civil rights perspective. To do so, states must create an Olmstead plan with enforceable benchmark targets—one that fully evaluates whether a state can take advantage of new federal options to better ensure that individuals can live in community-based settings where they can fully participate and be granted the power of individual decision making and choice.